Signature moves

Not too long ago, but before he was a state Assembly member, Ben Hueso came across a man collecting signatures outside a grocery store for a “transparency” initiative he said would've required the city to post service contracts online. Hueso thought this was odd since, as a San Diego City Council member, he knew the city already did that.

An argument ensued. The store's management was called. Eventually, Hueso convinced the signature collector to read the fine print. Hueso says the man, who was paid to be there, quit when he learned what the initiative was really about.

“I like to think I contributed in part to them not getting the signatures they needed to put it on the ballot,” Hueso says.

Now in the Legislature, Hueso is championing a bill that would place major regulations on paid petition gatherers in an attempt to curb fraud. The question is whether it would infringe on First Amendment rights or weaken the ability for Californians to determine the state's future.

A century ago this October, California took a major political leap toward direct democracy with the passage of Proposition 7, which allowed citizens to propose news laws and constitutional amendments through the ballot-initiative process.

Spin forward 100 years and the California initiative process is fraught with controversy. In San Diego, year after year there are reports that initiative-petition circulators, particularly paid ones, mislead or even lie to citizens in order to collect signatures. Last summer, San Diego City Councilmember Marti Emerald went on TV to explain how to remove one's name from a petition after receiving complaints that signature gatherers didn't disclose that the measure would repeal the city's living-wage ordinance. In December, voiceofsandiego.org and The San Diego Union- Tribune caught a signature collector lying not only about a school-board initiative, but also his name. Today, paid signature gatherers are under fire from labor leaders for allegedly providing citizens with misinformation on pension-reform and anti-project-labor-agreement initiatives.

Union members are engaged in a ground war with paid petition circulators, countering their efforts on street corners and in front of grocery stores. The labor unions have also taken the battle to Sacramento, where Hueso has introduced Assembly Bill 651. As of Tuesday, June 27, the bill had cleared the Assembly and two Senate committees and was headed to the Senate floor.

Hueso's bill would require professional petition firms to pay a fee and register with the Secretary of State's office, which would then post a directory of the firms online. The companies would be required to train signature gatherers in current law and submit copies of the training materials, along with signed statements from the individual gatherers, to the state. People who've been convicted of petition-related perjury, fraud and theft would be barred from professionally gathering signatures.

“Probably the most important element in our bill is requiring the firms to have training materials they can show petition gatherers,” Hueso's legislative director, Rene Bayardo, says. “We think that's really crucial because a lot of times petition gatherers are people that are trying to make some money and they're not necessarily up to date on what all the laws are.”

Angelo Paparella, president of the Los Angeles petition firm PCI Consultants Inc., says the bill is unnecessary: Petition gatherers already have to disclose their names and addresses on petition forms and sign them under penalty of perjury. The industry also self-regulates; Paparella says his firm regularly forwards evidence of fraud to the Secretary of State, which doesn't have the staff to expedite the cases.

“It's nonsensical, it's crazy and it does not address any problem out there in any real way,” Paparella says. “If they really wanted to do something about the very few instances when fraud comes up, rather than burden the Secretary of State with more paperwork, they could allocate more money to investigators.”

The regulations Hueso proposes could violate the First Amendment, says David Blair-Loy, legal director for the American Civil Liberties Union of San Diego and Imperial Counties. The organization has opposed this kind of regulation in other states, including Colorado, Nebraska and Oregon. Blair-Loy says the California bill violates the Constitution in two ways. First, the government isn't allowed to require individuals to register or pay a fee before engaging in protected speech.

“It's bad enough to violate the First Amendment,” he writes in an email. “It's worse to make the target pay for the violation.”

“While training may be a good idea, the First Amendment prevents the state from mandating it as a condition of engaging in protected speech,” Blair-Loy says. “For example, a newspaper might think it's a good idea to train reporters and editors on the law of defamation, but it would be clearly unconstitutional to require newspapers do so.”

The Howard Jarvis Taxpayers Association opposes Hueso's bill, complaining it meddles in the affairs of private businesses and weakens a democratic system popular with voters. David Wolfe, the association's legislative director, cites a Public Policy Institute of California study that found 56 percent of Californians prefer decisions made through the initiative process than those made by the governor and Legislature. Wolfe questions the prevalence of fraud, as well as the motivations behind the bill.

“Just by its very nature, public-employee unions are not inherent fans of the initiative process,” Wolfe says. “Anything they can do to keep the public-policy process in this state in-house, where a majority of legislators are in support of their efforts, they're going to want to do that.”

Lorena Gonzalez, secretary-treasurer and CEO for the San Diego and Imperial Counties Labor Council, a union umbrella group supporting AB 651, counters that, historically, the progressive movement fought for the initiative process.

“The problem is, it has become bastardized by big corporation interests, and people will now say or do anything, and goes so far as to lie to collect signatures for a petition,” she says. “All we want is as much sunlight and disclosure on the process as possible.”

A recent endorsement by the Humane Society of the United States lends credibility to AB 651 as the best of the possible reforms currently before the Legislature; other bills would prohibit firms from paying a per-signature rate and require gatherers to wear badges that indicate whether they're volunteers or paid workers. In 2008, the Humane Society used a combination of volunteer and paid petition gatherers to get Proposition 2 on the ballot. The landmark animal-rights measure for livestock passed.

“We support AB 651 because we want to protect the integrity of the initiative process,” Jennifer Fearing, the Humane Society's senior state director, wrote in a letter of support. “It's imperative that a ‘few bad apples' engaged in fraudulent activity not prompt legislative overreaction that risks silencing the citizen voice, further limiting grassroots access to the ballot, or the raising of unnecessary barriers to efforts like ours.”

The bill is essentially an amalgamation of two bills introduced by former Assemblymember Lori Saldaña in the previous session that passed through both houses only to be vetoed by Gov. Arnold Schwarzenegger.

“Schwarzenegger vetoed it, but Brown will sign it,” says Saldaña, a Democratic candidate for state Senate. “A lot of my bills are taking on a second life because they made it to the governor's desk, but we had the wrong governor.”